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4th edition
8

Ways
to Avoid
Probate
by Attorney Mary Randolph

FOURTH EDITION February 2003
PRODUCTION Lori A. Pacheco
EDITOR Ralph Warner
PROOFREADER Sheryl Rose
INDEX Susan Cornell
PRINTING Arvato Services, Inc.
COVER Toni Ihara
Randolph, Mary.
8 ways to avoid probate / by Mary Randolph. 4th ed.
p. cm.
Includes index.
ISBN 0-87337-915-2
1. Estate planning United States Popular works. 2. Probate law and practice United
States Popular works. I. Title: Eight ways to avoid probate. II. Title.
KF750.Z9 R36 2003
346.7305'2 dc21
2002043226
Copyright © 1996, 1999, 2001 and 2003 by Mary Randolph and Nolo. All Rights Reserved.
Printed in the U.S.A.
No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by
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Acknowledgments
My heartfelt thanks go to:
Jake Warner, who, as always, provided enthusiasm, support and spot-on
editing.
Denis Clifford, who gave generous and valuable help reviewing the

manuscript. I am also indebted to him for the wealth of information in
his own estate planning books.
Naomi Starkman, who cheerfully and doggedly helped with legal
research for the first edition, and Ella Hirst, who carefully updated
statutory references for the third and subsequent editions.
Two Nolo authors, Twila Slesnick, Ph.D, a tax and retirement specialist
who provided clear answers on murky retirement plan issues; and Tony
Mancuso, who provided up-to-the-minute information on small busi-
ness law.
My colleagues and friends at Nolo, who make coming to work a genuine
pleasure.
My family, who supply the love and support that makes everything else
possible.

CONTENTS
INTRODUCTION
THINKING ABOUT PROBATE AVOIDANCE
A. WHY IT’S WORTH YOUR WHILE TO AVOID PROBATE Intro/2
B. WHAT PROBATE AVOIDANCE CAN’T CHANGE Intro/6
C. COMPARING PROBATE-AVOIDANCE METHODS Intro/10
D. A LICK OF COMMON SENSE Intro/13
CHAPTER 1
SET UP PAYABLE-ON-DEATH ACCOUNTS
A. THE PAPERWORK 1/3
B. ADDING A P.O.D. DESIGNATION TO A JOINT ACCOUNT 1/5
C. CHOOSING BENEFICIARIES 1/7
D. IF A BENEFICIARY DIES BEFORE YOU DO 1/16
E. IF YOU CHANGE YOUR MIND 1/17
F. CLAIMING THE MONEY 1/20
CHAPTER 2

NAME A BENEFICIARY FOR YOUR RETIREMENT ACCOUNTS
A. CHOOSING A BENEFICIARY 2/3
B. REQUIRED WITHDRAWALS FROM RETIREMENT ACCOUNTS 2/14
CHAPTER 3
NAME A BENEFICIARY FOR STOCKS AND BONDS
A. TRANSFER-ON-DEATH REGISTRATION 3/2
B. REGISTRATION OF GOVERNMENT BONDS AND NOTES 3/12
CHAPTER 4
NAME A BENEFICIARY FOR YOUR VEHICLES
A. TRANSFER-ON-DEATH REGISTRATION 4/2
B. JOINT OWNERSHIP WITH THE RIGHT OF SURVIVORSHIP 4/5
C. SPECIAL TRANSFER PROCEDURES FOR VEHICLES 4/7
CHAPTER 5
HOLD PROPERTY IN JOINT OWNERSHIP
A. KINDS OF JOINT OWNERSHIP THAT AVOID PROBATE 5/2
B. JOINT TENANCY 5/4
C. TENANCY BY THE ENTIRETY 5/14
D. COMMUNITY PROPERTY 5/17
E. ALTERNATIVES TO JOINT OWNERSHIP 5/27
CHAPTER 6
CREATE A LIVING TRUST
A. HOW A LIVING TRUST AVOIDS PROBATE 6/4
B. OTHER ADVANTAGES OF A LIVING TRUST 6/8
C. WHY YOU STILL NEED A WILL 6/12
D. DO YOU REALLY NEED A LIVING TRUST? 6/12
E. CREATING A VALID LIVING TRUST 6/15
F. WHAT PROPERTY TO PUT IN A TRUST 6/24
G. TAXES AND RECORDKEEPING 6/31
H. AMENDING OR REVOKING A LIVING TRUST DOCUMENT 6/32
CHAPTER 7

TAKE ADVANTAGE OF SPECIAL PROCEDURES FOR SMALL ESTATES
A. WHY EVEN LARGE ESTATES MAY QUALIFY 7/3
B. CLAIMING WAGES WITH AN AFFIDAVIT 7/6
C. CLAIMING OTHER PROPERTY WITH AFFIDAVITS 7/8
D. SIMPLIFIED COURT PROCEDURES 7/18
CHAPTER 8
MAKE GIFTS
A. THE FEDERAL GIFT TAX 8/3
B. MAKING TAX-FREE GIFTS 8/5
C. GIFTS THAT COULD LAND YOU IN TAX TROUBLE 8/9
D. WHAT TO GIVE 8/12
E. GIFTS TO CHILDREN 8/14
F. THINKING BEFORE YOU GIVE 8/17
CHAPTER 9
USING THE EIGHT WAYS
A. ALICE AND FRANK: A SIMPLE LIFE 9/2
B. MARIA: DEALING WITH WIDOWHOOD 9/5
C. MIKE: MIDLIFE CONCERNS 9/8
D. JIM AND TERRY: AN UNMARRIED COUPLE 9/10
E. ESTHER AND MARK: NEW LOVE, OLD MONEY 9/13
F. LINDA AND TOMAS: COMFORTABLE 9/16
GLOSSARY
INDEX
ICONS USED IN THIS BOOK
CAUTION : Potential problem.
FAST TRACK: Lets you know that you may be able to skip
some material.
RESOURCE: Refers you to another self-help resource.
LAWYER: Situations when you should see a lawyer about a
particular issue.

TIP: A bit of advice that may help you with a particular
issue.
INTRODUCTION
Thinking About Probate Avoidance
A. WHY IT’S WORTH YOUR WHILE TO AVOID PROBATE Intro/2
B. WHAT PROBATE AVOIDANCE CAN’T CHANGE Intro/6
1. Taxes Intro/6
2. Your Family’s Right to Inherit Intro/7
3. Your Creditors’ Rights Intro/9
C. COMPARING PROBATE-AVOIDANCE METHODS Intro/10
D. A LICK OF COMMON SENSE Intro/13
Introduction/ 2 8 WAYS TO AVOID PROBATE
Probate, lawyers say, is simply a safeguard, designed to ensure that
your wishes are honored and your family protected when you are no
longer around to oversee matters yourself.
An impartial court supervises the whole process, to look out for the
interests of both your family and your creditors. What’s wrong with
that?
A lot, unfortunately.
AN OVERVIEW OF PROBATE
During probate proceedings, a deceased person’s will is brought to
the local court. Proof must be shown that the will is authentic and was
properly signed, with all the formalities required by state law. (If there is
no valid will, the court determines who, under state law, stands to
inherit the deceased’s property.) The deceased person’s property is
inventoried and appraised, relatives and creditors are notified, and a
notice is published in the local newspaper. Creditors make their claims,
and debts are paid. Eventually—commonly, about a year later—the
remaining property is distributed to the inheritors.
A. Why It’s Worth Your While to Avoid Probate

Probate’s problems have been well documented and well publicized.
And if you’ve experienced the probate process firsthand, after the death
of a parent or spouse, you probably don’t need any convincing that
avoidance is the best strategy. But in case you still aren’t sure why
planning to avoid probate is worth some effort, here is a summary of the
important downsides.
Thinking About Probate Avoidance Introduction / 3
Probate is a waste of money. The cost of probate varies widely
from state to state, but probate attorney, court and other fees often eat
up about 5% (or more) of the value of property left behind at death. As a
result, that much less goes to the people or charities you wanted to get
it. If the estate is complicated or disputed, the fees can be even larger.
TYPICAL PROBATE FEES
If you die with this much… …probate may cost about this much
$200,000 $10,000
$400,000 $20,000
Probate’s cost might be justified if the process really did something
for families. But in most instances, there is no conflict, so there’s no need
to be in court.
For example, say a man leaves a will that gives everything to his
widow and children, as is common. No one is challenging the validity of
the will, and the family is perfectly willing to pay whatever bills he left
and divide up the property according to his wishes. Why have a lengthy
court proceeding, formal notification of relatives and creditors, and
expensive publication of death notices in the “legal notices” column of a
newspaper? The property merely needs to be handed over to the new
owners, which is what probate-avoidance methods let you do. The
successful use of living trusts and other probate avoidance techniques by
millions of Americans is convincing evidence that if probate were gone,
we wouldn’t miss it.

Probate is a windfall for lawyers. Probate is such a profit center
for lawyers that they go to great lengths to secure business (and to block
legislative reforms that might render them superfluous). The probate
windfall explains why lawyers usually charge so much less for wills than
they do for other documents of comparable complexity: they are hoping
Introduction/ 4 8 WAYS TO AVOID PROBATE
to cash in later, when the will must be probated. It is no exaggeration to
say that many lawyers plan for their later years by anticipating lucrative
probate cases regularly coming their way.
A lawyer who accepts a probate case is almost guaranteed a nice
profit for very little effort. Generally, probate entails lots of tedious
paperwork but little or no original thinking. Most of the actual work is
done by legal secretaries and paralegals. (In fact, more and more lawyers
farm out the whole job—without telling the client—to form preparation
services run by freelance paralegals.) There are few court appearances, if
any, and very rarely is a lawyer called on to craft a legal argument or
conduct anything resembling a trial.
Lawyers’ fees, set by statute or local custom, often bear no relation to
actual work done. Courts are supposed to keep an eye on fees, but in
practice they very seldom intervene. And lawyers are almost always paid
first—before the beneficiaries.
Some people slog through probate without hiring a lawyer, but in
most states the system does nothing to encourage them. Just finding the
right court can be a challenge. Depending on where you live, your will
may be headed for Surrogate’s Court, Orphans’ Court, Circuit Court,
Superior Court or Chancery Court. (In a few states, good self-help
materials are available; for example, Nolo publishes How to Probate an
Estate in California, by Julia Nissley.)
Probate takes too long. Often, probate takes a year or two, during
which time the beneficiaries generally get nothing unless the judge

allows the immediate family a “family allowance.” In some states, this
allowance is a pittance, only a few hundred dollars. In others, it can
amount to thousands. In any case, the family is forced to ask a court for
use of its own money—a demeaning and absurd situation.
Delay can be more than an annoyance; it can cause major life
disruptions. A student about to enter college may not be able to if a
parent’s assets are tied up in probate for months or years. A surviving
Thinking About Probate Avoidance Introduction / 5
spouse may not be able to move to take a new job. And it’s especially
hard to run—or sell—a small business with the court looking over your
shoulder.
Probate is public. Few people ever stop to think that a will—a very
personal document, which may reveal much about both someone’s
financial and family circumstances—becomes a matter of public record
after its writer dies. Like all other probate documents, wills are exam-
ined and filed, and can be inspected by anyone who goes to the court-
house and asks.
If you’re rich or famous, you can count on public scrutiny. In any
bookstore, you can find books of nothing but the wills of famous
people; Jacqueline Kennedy Onassis’s will popped up on the Internet
almost instantly after it was filed in court. Obviously, precious few
people generate the public interest of a Jackie O—but if you’re well
known in your community, reporters may sniff around just to see if
there’s anything they consider newsworthy. And con artists have been
known to use public records to gather information about surviving
family members who might be vulnerable to scams.
If, on the other hand, you arrange for your property to pass outside
of probate—via a living trust or payable-on-death bank account, for
example—the transaction is private. No documents are filed with a court
or other government entity; what you leave to whom remains private.

(There is one exception: Records of real estate transfers are always
public.)
Each state requires a court proceeding. The only thing worse than
regular probate is out-of-state probate. Usually, probate takes place in
the county where the deceased person was living. But if there’s real
estate in another state, it’s usually necessary to have a whole separate
probate proceeding there, too. That means finding a lawyer in each state
and financing multiple probate proceedings. No fun there.
Introduction/ 6 8 WAYS TO AVOID PROBATE
WHY REFORM DOESN’T HAPPEN
If the probate system is such a mess, why hasn’t it been cleaned up? It’s
the responsibility of state legislatures to change probate laws, and there have
been some attempts at reform. But it’s hardly a hot-button issue—no
politician is going to get elected on a Probate Reform platform.
When efforts are made, they threaten well-established interests. Probate
lawyers, of course, stand to lose large amounts of easy money. Other
industries milk the probate system as well: newspapers that publish the
legal notices required in probate and businesses that sell the bonds execu-
tors must post, for example. Lobbyists for all these interests come out in
force when proposed legislation would seriously cut into their profits.
The dearth of reform has, ultimately, spurred an end-run around
probate. If you can’t change it, people have decided, avoid it altogether.
For a convincing collection of horror stories about probate’s
sometimes devastating effect on families, see How to Avoid
Probate! by Norman Dacey (HarperCollins Publishers Inc.).
B. What Probate Avoidance Can’t Change
Avoiding probate has much to recommend it, as discussed above. But at
the same time, it’s not a magic bullet that solves every financial problem
that might surface after your death. To clear up some common miscon-
ceptions, here are a few things that probate-avoidance has absolutely no

effect on.
1. Taxes
Avoiding probate doesn’t mean avoiding death taxes. In fact, the two are
completely unrelated. If you give away a lot of money during your life,
Thinking About Probate Avoidance Introduction / 7
or leave a lot at your death, the federal government may take a chunk of
it in the form of gift or estate tax. The government is uninterested in
whether or not the property goes through probate court on its way to
the people who inherit it.
Most people don’t even need to think about federal gift and estate
taxes. These taxes affect only people who make very large amounts of
taxable gifts during life or leave very large estates at death. (Chapter 8,
Section A, explains estate taxes.)
2. Your Family’s Right to Inherit
If you’re married, your spouse has a right to some of the property you
leave at your death, and using probate-avoidance techniques to transfer
the property doesn’t change that. This, of course, is no problem for most
people; most of us want very much to pass on to our spouses and children
whatever wealth we’ve accumulated. In case you’re concerned about this
issue, however, here are the general rules regarding your family’s rights:
Your Spouse. Most married people leave much, if not all, of their
property to their spouses. But if you don’t leave your spouse at least half
of your property, your spouse may have the right to go to court and
claim some of your property after your death.
The rights of spouses vary from state to state. In the community
property states (Arizona, California, Idaho, Louisiana, Nevada, New
Mexico, Texas, Washington and Wisconsin), the general rule is that
spouses together own all property that either acquires during the mar-
riage, except property one spouse receives by gift or inheritance. Each
spouse owns a half-interest in this “community property.” You are free

to leave your separate property and your half of the community property
to anyone you choose.
In all other states, a surviving spouse who doesn’t receive one-third
to one-half of the deceased spouse’s property (through a will, living trust
Introduction/ 8 8 WAYS TO AVOID PROBATE
or other method) is entitled to insist upon that much. The exact share
depends on state law. In short, a spouse who doesn’t receive the mini-
mum he or she is entitled to under state law (the “statutory share”) may
be entitled to some of the property in your living trust.
Don’t try to cut out your spouse. If you don’t plan to
leave at least half of the property in your estate to your spouse,
you should consult a lawyer experienced in estate planning.
State law may also give your spouse the right to inherit the family
residence, or at least use it for his or her life. The Florida constitution,
for example, gives a surviving spouse the family residence. (Fla. Const.
Art. 10, § 4.) The spouse is free, of course, to voluntarily give up this
right.
Plan Your Estate, by Denis Clifford and Cora Jordan (Nolo),
contains a state-by-state list of surviving spouses’ rights.
Children. Although most children inherit the bulk of their parents’
property—usually after both parents have died—it isn’t mandated by
law. Put bluntly, you don’t have to leave your children a dime.
The law protects only children who appear to have been accidentally
overlooked—typically, children born after the parent’s will is signed.
Such children are entitled to a share (the size is determined by state law)
of the deceased parent’s estate, which may include property in a living
trust.
So if you don’t want to leave any property to one or more of your
children—perhaps they already have plenty of money, or you’ve already
given them their inheritances—just make a will and mention each child

in it. And to avoid any later misunderstandings or hurt feelings, explain
Thinking About Probate Avoidance Introduction / 9
your actions to your children, either in your will or—better—now, in
person.
Grandchildren have no right to inherit from their grandparents
unless their parent has died. In that case, the grandchildren essentially
take the place of the deceased child and are entitled to whatever he or
she would have been legally entitled to, if anything.
3. Your Creditors’ Rights
Avoiding probate doesn’t let you off the hook from legal obligations to
your creditors. If you don’t leave enough other assets to pay your debts
and taxes, any assets that passed outside of probate may be subject to
the claims of creditors after your death.
If there is any probate proceeding, your executor can demand that
whoever inherited the property turn over some or all of it so that credi-
tors can be paid. Creditors, however, have only a set amount of time—
about six months, in most states—to submit formal claims to your
executor. A creditor who is properly notified of the probate court
proceeding cannot file a claim after the deadline passes.
On the other hand, when property isn’t probated, creditors’ claims
aren’t cut off so quickly. In theory, at least, a creditor could track down
the property and sue the new owner to collect the debt a year or two
later.
Example: Elaine is a real estate investor with a good-sized portfolio of property.
At any one time she has many creditors, and she has even been sued once or
twice. It might be to her advantage to have assets transferred by a probate
court procedure, which requires creditors who are properly notified of the
probate proceeding to file their claims promptly.
Introduction/ 10 8 WAYS TO AVOID PROBATE
As a practical matter, however, avoiding probate may actually

provide more protection from creditors. When property is distributed
without probate, there is no legal requirement (as there is in probate)
that creditors be notified in writing. They may not know of the death for
years. They may not know where the property went, and especially if the
debt is small, it may not be worth their while to track it down and sue
the new owners to collect the debts.
Most people don’t need to worry that after their death, creditors will
line up to collect large debts from the estate. In most situations, the
surviving relatives simply pay the valid debts, such as monthly bills,
taxes and medical and funeral expenses. But if you are concerned about
the possibility of large claims, you may want to let your property go
through probate.
It’s all or nothing. If you want to take advantage of probate’s
creditor cutoff, you must let all your property pass through
probate. If not, the creditor could still sue (even after the probate claim
deadline) and try to collect from the property that didn’t go through
probate.
C. Comparing Probate-Avoidance Methods
Given the plentiful drawbacks of probate, it’s not surprising that people
have sought ways around it. In a nutshell, you can avoid probate by
using other documents in place of a will, or by transferring property
before your death.
Forty years ago, almost the only way to avoid probate was by using a
trust. New methods have come along as part of new, government-
created types of investments, such as private retirement accounts. People
have eagerly taken up each new probate-avoidance method. In fact,
Thinking About Probate Avoidance Introduction / 11
“non-probate transfers” have gotten so popular “that they now consti-
tute a major, if not the major, form of wealth transmission,” according
to a committee of legal experts drafting a model probate law. (Intestacy,

Wills, and Donative Transfers Act, 8B U.L.A. 3 (1993).)
This book discusses eight common and straightforward ways to
avoid probate. None of these methods requires hiring a lawyer; all
involve very little or no expense.
Keep in mind that you can mix and match methods when you’re
planning to avoid probate. You may well want to use one technique for
avoiding probate of real estate and another for stocks, for example.
Some options for common kinds of assets are listed below. Not every
option is available in every state; each method’s advantages and limita-
tions are discussed in detail later in the book.
Introduction/ 12 8 WAYS TO AVOID PROBATE
CHOOSING THE RIGHT PROBATE-AVOIDANCE METHOD
Asset What You Can Do to Avoid Probate
Real estate Transfer to a living trust
Hold property in joint tenancy with a co-owner or
tenancy by the entirety with your spouse
Hold as community property (or community property
with right of survivorship) with your spouse
Bank accounts, Name a payable-on-death beneficiary
certificates of deposit Hold in joint tenancy with a co-owner or tenancy by
the entirety with your spouse
Hold as community property (or community property
with right of survivorship) with your spouse
Transfer to a living trust
Stocks and bonds Name a transfer-on-death beneficiary
Transfer to a living trust
Hold in joint tenancy with a co-owner or tenancy by
the entirety with your spouse
Hold as community property (or community property
with right of survivorship) with your spouse

Government bonds Register ownership in beneficiary form
Hold in joint tenancy with a co-owner or tenancy by
the entirety with your spouse
Hold as community property (or community property
with right of survivorship) with your spouse
Transfer to a living trust
Cars and other vehicles Register in transfer-on-death form
Hold in joint tenancy with a co-owner or tenancy by
the entirety with your spouse
Hold as community property (or community property
with right of survivorship) with your spouse
Transfer to a living trust
Retirement accounts Name a beneficiary to inherit at your death
(IRAs, 401(k) accounts)
Not all of these probate-avoidance methods are available in every state and not all are
appropriate in every situation. The chapters on each method explain their restrictions,
advantages and disadvantages.